Valley Peat & Humus v. Sunnylands, Inc.

JOHNSON, Judge,

dissenting.

This case was reargued before the court en banc to consider whether an appeal is properly taken directly from *412the entry of a judgment of non pros on the court’s own motion or whether it is properly taken only after a petition to open the judgment of non pros has been filed and denied. A companion case, Elcomp, Inc. v. Drolet, 398 Pa.Super. 421, 581 A.2d 203 (1990) (en banc), reargued the same day, raises an identical issue, where the judgment of nonsuit is entered on motion of the defendant. Both cases involve the invocation of Pa.R.C.P. 218, Party Not Ready When Case Is Called For Trial. In neither case was a petition to open the judgment filed.

As the majority recognizes, the procedural events in this case did not follow their normal course. After the trial court had granted the non pros, counsel for Valley Peat & Humus (VP & H) mailed Plaintiff’s Motion for Reconsideration to the Pike County Prothonotary from counsel’s Philadelphia office. Attached to the Motion was an Affidavit executed by counsel. The Motion was denied by the court on March 16, 1989, although the order denying the motion has not been separately docketed. The certified record includes an Answer to the Motion for Reconsideration, filed March 23, 1989. The Answer controverts many of the averments contained in either the Motion or the attached Affidavit. The appeal to this court was taken from the order of March 7, 1989 entering the non pros. The notice of appeal was filed April 4, 1989.

Unlike the majority, I am unable to conclude upon my review of the certified record that “counsel had a compelling reason for his failure to arrive on March 6, 1989 and for his late arrival on March 7, 1989.” We can consider only the certified record on appeal when reviewing a case. Barner v. Barner, 364 Pa.Super. 1, 527 A.2d 122 (1987). Sunnylands, Inc., through its Answer to the Motion, has expressly denied some of the very “facts” which the majority has lifted from VP & H’s Motion and its Brief.

More importantly, the majority seemingly relies upon “facts ... which the trial court itself accepted in its Opinion of May 8, 1989.” Majority at page 409, fn. 5. The majority does not specify those places in the certified record where *413it found and confirmed the facts upon which it now relies. We should not accept a finding which has no competent evidence to support it, but are instead required to make an independent judgment based on the evidence and the testimony. Commonwealth ex rel. Spriggs v. Carson, 470 Pa. 290, 295, 368 A.2d 635, 637 (1977); citing Commonwealth ex rel. Ulmer v. Ulmer, 231 Pa.Super. 144, 146-48, 331 A.2d 665, 667 (1974).

My review of the record has not confirmed the so-called “undisputed facts of record” found by the majority. I take my guidance from our Supreme Court which had no difficulty rejecting a trial judge’s certification as to what transpired when that certification differed from what appeared in the official record. Commonwealth v. Young, 456 Pa. 102, 317 A.2d 258 (1974). In Young, Mr. Justice Roberts instructed us:

The fundamental tool for appellate review is the official record of what occurred at trial. Only the facts that appear in this record may be considered by a court____ “[I]t is black letter law that an appellate court cannot consider anything which is not a part of the record in the case”____ Consistent with our responsibility to view only the record facts, we cannot accept the assertions in the trial court’s written opinion that any [jury] instruction was given other than that which appears in the record.

456 Pa. at 114-16, 317 A.2d at 264-65. (citations and footnotes omitted).

The difficult issue, as in all Rule 218 cases, is not whether the trial court could properly enter judgment of non pros on March 7, 1989 upon the plaintiff’s failure to appear. On the certified record, the answer to that question must be a clear: Yes. The important issue is whether the trial court abused its discretion by refusing to vacate that judgment, after receipt of a motion and attached affidavit unaccompanied by a request for a hearing on the motion.

I would agree with the majority that this court need not consider the propriety of the trial court’s conducting its own investigation. I find it unnecessary to consider that facet *414of the case, since VP & H has not satisfied its burden, on the certified record, of reasonably explaining its two-day absence from the Pike County courthouse.

VP & H improperly filed a motion instead of a verified petition as contemplated by Pa.R.C.P. 206. Cox v. Felice Perri & Sons, 412 Pa. 415, 195 A.2d 79 (1963). The averments of fact in Sunnyland’s Answer would be deemed admitted, under Rule 209, were this matter to be decided on those pleadings as the majority seemingly would do. On the limited averments favorable to VP & H once the proper procedure is applied, I am unable to find an abuse of discretion. I therefore would affirm the trial court order granting the judgment of non pros against plaintiff for its failure to be ready when its case was called for trial.

A judgment of non pros may be entered under varying circumstances. However, in those cases arising under Rule 218 where the appeal is taken immediately from the entry of non pros, the only element controlling the discretion of the trial judge is whether a plaintiff has placed a satisfactory excuse for nonreadiness before the court at the time the case is called for trial. The record in this case contains no such excuse.

While appeal either from a judgment of nonsuit or from a grant or denial of a petition to open is now permitted, the better practice in Rule 218 dismissals is to require the barred plaintiff to petition to remove the non pros or nonsuit and have that petition decided before an appeal is taken. Where this is done, and where the petition practice contemplated by Pa.R.C.P. 205 through 209 is followed, it would necessarily involve the taking of testimony to establish the verity of the facts alleged for the removal of the judgment. Cox v. Felice Perri & Sons, 412 Pa. at 417, 195 A.2d at 80. Two positive outcomes will normally occur. First, the trial court which entered the judgment will have an opportunity to review its action based upon the record made. Second, the reviewing court will then have an evidentiary record as well as the trial court’s reasoning in *415support of its decision to either remove the nonsuit/non pros or deny such removal.

Our endorsement of such a practice in cases involving Rule 218 does not conflict with our limited role as an intermediate appellate court. I am in complete agreement with the majority that if the filing and disposition of a petition to open judgment of non pros prior to taking an appeal is to become mandatory, that change must come from our Supreme Court. This in no way is inconsistent with a desire that the proper standard of review be employed on direct appeals from entry of Rule 218 nonsuit/non pros judgments.

The majority declares that “prejudice has traditionally been a consideration in all non pros cases”. Majority page 197. This assertion would be more persuasive if accompanied by either (1) a citation to any case involving Rule 218 (or party not ready when case called for trial) where the element of prejudice is mentioned, or (2) an explanation as to why prejudice is not mentioned in those cases involving Rule 218, where the appeal is taken from the denial, or grant, of a petition to open. See Nivens v. Chestnut Hill Hospital, supra, and Toczylowski v. General Bindery Co., supra. We do the practicing bar a disservice when we fail to distinguish between the separate, and distinguishable, three-part tests applied in matters arising under Rule 218, on the one hand, or under other rules, such as Rule 1037, on the other hand.

Rule 218 has recently been amended, effective July 1, 1990, to afford the plaintiff an option on appeals from an award in compulsory arbitration. That amendment is not pertinent here. At the time of the entry of the order here under review, Rule 218, in its entirety, provided:

RULE 218. Party Not Ready When Case is Called for Trial
When a case is called for trial, if without satisfactory excuse a plaintiff is not ready the court may enter a non-suit on motion of the defendant or a non pros on the *416court’s own motion. If without satisfactory excuse a defendant is not ready, the plaintiff may proceed to trial.

I must take issue with my learned colleagues regarding the considerations which a trial court must entertain before it can enter a Rule 218 non pros judgment. The majority cites James Bros. Co. v. Union B. & T. Co. of DuBois, 432 Pa. 129, 247 A.2d 587 (1968) for the following principle:

A Court may properly enter a judgment of non pros, when a party to the proceeding has shown a want of due diligence in failing to proceed with reasonable promptitude, and there has been no compelling reason for the delay, and the delay has caused some prejudice to the adverse party, such as the death of or unexplained absence of material witnesses.

Id., 432 Pa. at 132, 247 A.2d at 589 (citations omitted). That is the correct standard when considering a non pros entered following the filing of a petition for a rule to show cause, the granting of that rule, submission of briefs and argument, and the possible entry of a rule absolute. Such was the case in James Bros. Co., supra. That case did not involve the unreadiness or nonappearance of a party when a case is called for trial.

Considerations such as “a want of due diligence”, “reasonable promptitude” and “prejudice” are all matters which may be alleged and sought to be proven through the filing of a petition for a rule to show cause and the proceedings that necessarily ensue. I do not question the efficacy of the principle when applied in appropriate cases. Rule 218 dismissals do not, however, activate that three-part test.

To the contrary, the court is properly concerned with only two factors when confronted with a direct Rule 218 challenge: (1) is the plaintiff “not ready” (that is to say, does not appear or refuses to go forward) and (2) is the plaintiff “without satisfactory excuse.” Where these two elements coalesce, an abuse of discretion in granting the nonsuit or in entering the non pros will not arise.

*417The three-pronged test which the majority extracts from Narducci v. Mason’s Discount Store, 518 Pa. 94, 98, 541 A.2d 323, 325 (1988) is, in my view, inapplicable in Rule 218 cases where, as here, an immediate appeal has been taken. To begin, Narducci involved the review of an order vacating a judgment of non pros which had been entered upon plaintiffs failure to file adequate answers to interrogatories. The fact situation in Narducci did not involve unreadiness when the case was called for trial but rather an extended history of protracted delay over a number of years. Our Supreme Court stated that in order for a judgment of non pros to be opened, (1) the petition to open must be promptly filed; (2) the default or delay must be reasonably explained; and (3) facts to support a cause of action must be shown to exist.

None of the cases relied on by our Supreme Court in Narducci, in citing the above three-pronged test, have any relevance to the situation posed by Rule 218. Hutchison v. Hutchison, 492 Pa. 118, 422 A.2d 501 (1980) involved entry of a default judgment for arrearages in support, following a rule to show cause. Pappas v. Stefan, 451 Pa. 354, 304 A.2d 143 (1973) involved a default judgment entered following defendant’s failure to respond to an endorsed complaint within twenty days. Both Goldstein v. Graduate Hospital of the University of Pennsylvania, 441 Pa. 179, 272 A.2d 472 (1971) and Thorn v. Clearfield Borough, 420 Pa. 584, 218 A.2d 298 (1966) involved a judgment of non pros entered for failure to file a complaint within twenty days after issuance of a rule.

Two recent cases in our court demonstrate the proper application of a three-pronged test in matters involving the invocation of Rule 218. Nivens v. Chestnut Hill Hospital, 373 Pa.Super. 377, 541 A.2d 365 (1988); and Toczylowski v. General Bindery Co., 359 Pa.Super. 572, 519 A.2d 500 (1986). Both cases involved a failure by plaintiff to answer when the trial list was called. In both cases, a judgment of non pros was entered. In both cases, a petition to vacate the judgment of non pros was filed. In both cases, the *418petition was granted and the non pros vacated, prompting an appeal to this court in each case.

A three-pronged test was applied by this court in both Nivens and Toczylowski. the third prong in both of those cases was that a party seeking vacation of a judgment must demonstrate that “(8) the facts constituting grounds for a cause of action are alleged.” Nivens, 373 Pa.Super. at 379, 541 A.2d at 366; Toczylowski, 359 Pa.Super. at 577, 519 A.2d at 503. This is consistent with Narducci, supra, 518 Pa. at 98, 541 A.2d at 325, upon which the majority on this appeal sometimes relies. The criterion was utilized to determine whether the trial court abused its discretion in vacating or opening the judgment of non pros. The rule was not applied to test the original entry of the non pros. Equally significant, there is no suggestion in either Nivens or Toczylowski that prejudice plays any role in the analysis. And in Narducci, prejudice becomes a factor only after the three factors comprising the tripartite test have been established and the court, in doing equity, must avoid undue hardship or prejudice to the opponents. Narducci, supra, 518 Pa. at 98, 541 A.2d at 325.

The majority does not explain whether its standard of review on this appeal employs, as its third prong, the “existing facts to support a cause of action” criteria in Nivens, Toczylowski and Narducci, or the “delay causing some prejudice” standard in James Bros. Co., supra, or both.

Because the content of the order from which the appeal is taken materially affects the outcome of an appeal, this distinction is not superficial. Where the appeal is taken directly from the entry of nonsuit or non pros under Rule 218, the three-pronged test would not be applicable, and a showing of abuse would be extremely difficult. If, however, the appeal is delayed until after the trial court has acted upon a petition to remove the nonsuit, the certified record will normally contain the facts against which the elements of the correct tripartite standard should be applied.

*419To recap, as an intermediate appellate court, it is not our role to engage in rule making. A direct appeal from the entry of a judgment of non pros or nonsuit under Rule 218 would appear to be entirely proper. There is no express provision governing practice following the entry of a Rule 218 dismissal. I would disagree with my esteemed colleagues in the majority, however, concerning the extent to which our supreme court has countenanced direct appeals from Rule 218 dismissals. None of the cases cited by the majority involve Rule 218 judgments. In both of the recent cases decided by this court where Rule 218 was implicated—Nivens and Toczylowski—the parties followed the petition practice. This permitted our court to apply the correct three-pronged test to the facts as developed through petition and answer.

I would also commend to the trial bar that in all matters involving the entry of a judgment of nonsuit or non pros under Rule 218, the aggrieved party proceed by petition and answer to seek removal of the nonsuit prior to any appeal. The appeal thereafter would be from the order removing, or refusing to remove, the nonsuit.

I advocate a different procedure from my distinguished colleagues. On this appeal, I do not believe either three-part test plays any role. That is because, as the majority points out, we are reviewing only the order entering non pros on the court’s own motion. To review that order, we need only be aware of what was before the trial court at the moment that the order was about to be entered. When I review the certified record, and when I limit my review to only those matters which were filed of record either on or before March 7, 1989,1 come up with far fewer “undisputed facts” than does the majority. I find no abuse of discretion from the entry of the order of non pros. I would affirm that order. Therefore, I dissent.

Joined by FORD ELLIOTT, J.